Decision Date: 11/14/95 Archive Date:
11/13/95
DOCKET NO. 93-27 007 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Whether the appellant has basic eligibility for educational
assistance benefits under Chapter 30, Title 38, United
States Code.
REPRESENTATION
Appellant represented by: South Carolina Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. D. Turano, Counsel
INTRODUCTION
The appellant served on active duty from October 8, 1982, to
February 23, 1983, with the reason for separation noted as
an "entry level status performance and conduct." The
discharge was uncharacterized. The appellant had an
additional period of active duty from May 1986 to July 1988.
This matter came before the Board of Veterans Appeals
(Board) from a November 1991 decision letter which informed
the appellant that an error had been made and she did not
meet the basic eligibility requirements for educational
assistance benefits under Chapter 30, Title 38, United
States Code. A timely notice of disagreement was received
that same month. A statement of the case was issued in
March 1993. A substantive appeal was received in April
1993. A personal hearing was held before a member of the
Board at the Regional Office (RO) in November 1993.
During the course of this appeal and in testimony before a
member of the Board, the appellant has indicated that she
wishes to receive a refund of the $1,200 she asserts was
deducted from her military paycheck for purposes of
educational assistance benefits under Chapter 30, Title 38,
United States Code. Although the RO has not addressed this
question, the Board is of the opinion that some explanation
to the appellant with respect to this matter is in order.
The governing law specifically provides that any money
contributed by a claimant shall revert to the United States
Treasury and shall not be considered to have been received
by or to be within the control of such individual. 38
U.S.C.A. § 3011(b)(West 1991).
The Department of Veterans Affairs (VA) General Counsel, in
an advisory opinion dated February 23, 1993, (VAOPGCADV 13-
93), advised the Board that VA has no control over monies
withheld from an individual's basic pay for Chapter 30
purposes and, likewise, has no statutory authority to return
such amounts. However, the Board was further advised by the
General Counsel that each branch of the Armed Forces is
responsible for the restoration of funds erroneously
withheld from service members, and that it is the policy of
the Armed Forces that full refund will be made in certain
cases upon a request for restitution from the specific
branch of the Armed Forces.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant and her representative contend, in substance,
that the appellant meets the basic eligibility requirements
for receipt of educational assistance benefits under Chapter
30, Title 38, United States Code. It is argued that upon
her enrollment while in service, the Armed Forces personnel
were aware of her prior military service but indicated to
her that she was still eligible for these benefits as her
first period of service was for less than six months. It is
maintained that funds were deducted from her military pay
for purposes of her enrollment in this educational
assistance program.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the appellant does not have basic
eligibility for educational assistance benefits under
Chapter 30, Title 38, United States Code.
FINDINGS OF FACT
1. The appellant served on active duty from October 8, 1982,
to February 23, 1983, with the reason for separation noted
as an "entry level status performance and conduct." The
discharge was uncharacterized.
2. The appellant had an additional period of active duty
from May 1986 to July 1988.
3. The appellant's first period of service was prior to
June 30, 1985, and she did not have eligibility to benefits
under Chapter 34, Title 38, United States Code as a result
of her second period of service.
CONCLUSION OF LAW
The appellant has not met the basic eligibility criteria for
entitlement to educational assistance benefits under Chapter
30, Title 38, United States Code. 38 U.S.C.A. §§ 3002,
3011, 5107 (West 1991); 38 C.F.R. § 21.7020, 21.7040,
21.7042 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant asserts, both in written statements and in
testimony before a member of the Board, that she should be
granted basic eligibility for benefits under Chapter 30,
Title 38, United States Code. It is argued that upon her
enrollment while in service, the Armed Forces personnel were
aware of her prior military service but indicated to her
that she was still eligible for these benefits as her first
period of service was for less than six months. It is noted
that the appellant, erroneously, was found to be eligible to
educational assistance benefits under Chapter 30, Title 38,
United States Code. The award was found to be erroneous
based on administrative error due to the fact that the
appellant had a period of service prior to that which formed
the basis of the erroneous award. She had been awarded $300
per month beginning on March 5, 1990, and again on June 3,
1991. Her benefits were terminated as of August 1, 1991.
She testified at a hearing in November 1993, that she should
maintain her basic eligibility to educational assistance
benefits under Chapter 30, Title 38, United States Code.
In this regard, the Board must emphasize that the legal
criteria governing service eligibility requirements for
Chapter 30 educational assistance are very specific and
involve a determination of whether an individual has
sufficient qualifying active duty service. The Board notes
that, in order to qualify for educational allowance under
Chapter 30, the controlling law mandates that a claimant who
first served on "active duty" on or after July 1, 1985, must
complete at least three continuous years of his or her
initial enlistment obligation, unless the individual was
discharged for a service-connected disorder, for a medical
condition which pre-existed service, for hardship, or for a
physical or mental condition not characterized as a
disability and not due to willful misconduct but which did
interfere with the performance of duty, as determined by the
Secretary of the service department concerned. A further
exception is provided for an individual who is involuntarily
discharged for the convenience of the Government due to a
reduction in force. Finally, the law further provides that
a claimant with an initial service obligation of three years
or more who completes at least 30 months of continuous
service, and who was discharged for the convenience of the
Government, meets the basic service requirements for
receiving Chapter 30 educational benefits. 38 U.S.C.A. §
3011(a)(1)(A) (West 1991); 38 C.F.R.§ 21.7042 (1994).
In addition, 38 C.F.R. 21.7020(b) (1) (1994) provides that
the term "active duty" means full time duty in the Armed
Forces, other than active duty for training, full time duty
(other than for training purposes) as a commissioned officer
of the Regular or Reserve Corps of the Public Health
Service, full time duty as a commissioned officer of the
National Oceanic and Atmospheric Administration, and
authorized travel to or from such duty or service. The term
"active duty" does not include any period during which an
individual was assigned full time by the Armed Forces to a
civilian institution for a course of education which was
substantially the same as established courses offered to
civilians, served as a cadet or midshipman at one of the
service academies, or served under the provisions of 10
U.S.C. § 511(d) pursuant to an enlistment in the Army
National Guard or the Air National Guard, or as a Reserve
for service in the Army Reserve, Naval Reserve, Air Force
Reserve, Marine Corps Reserves, or Coast Guard Reserve.
Educational assistance benefits pursuant to Chapter 30,
Title 38, United States Code, are basically available to two
classes of individuals: (1) Those individuals who first
become members of the Armed Forces or who first enter active
duty as a member of the Armed Forces after June 30, 1985;
and (2) some individuals who had entitlement remaining to
educational assistance under the Chapter 34 program on
December 31, 1989, when that program expired. 38 U.S.C.A.
§§ 3011(a)(1), 3012(a)(1) (West 1991); 38 C.F.R. § 21.7040
(1994). Eligibility may be based either on receipt of an
honorable discharge after satisfaction of the basic service
requirements or service in the Selected Reserve of specified
length following a prescribed period of active duty. The
evidence of record clearly reflects that the appellant is
not a member of the first class since her first period of
service was prior to June 30, 1985. While this period of
service was for less than six months, as the appellant
asserts, it remains that it constitutes a period of active
duty upon which the appellant received an entry level
separation and her service was uncharacterized. There is no
minimum requirement as to length of service providing it
constitutes a period of active duty as defined in the law
and regulations. It should be noted that the Board is
legally bound in its decisions by applicable statutes, VA
regulations and precedent opinions of the VA General
Counsel. 38 U.S.C. § 7104(a),(c) (West 1991).
Regarding the second class of individuals referred to above,
an individual who was eligible for educational assistance
benefits under Chapter 34 and was on active duty at any time
during the period beginning on October 19, 1984, and ending
on July 1, 1985, may be eligible for Chapter 30 benefits if
he or she continued on active duty without a break in
service and after June 30, 1985, serves at least three years
of continuous active duty in the Armed Forces or after June
30, 1985, is discharged or released from active duty under
certain prescribed circumstances. These include discharge
for a service- connected disability, for a medical condition
which pre-existed service, for hardship, or for a physical
or mental condition that was not characterized as a
disability, for the convenience of the Government (if the
individual completed not less than 30 months of continuous
active duty after June 30, 1985), or involuntarily as a
result of reduction in force. 38 U.S.C.A. § 3011(a)(1)(B)
(West 1991).
In this case, the appellant served on active duty from
October 8, 1982, to February 23, 1983, with the reason for
separation noted as an "entry level status performance and
conduct." with an additional period of active duty from May
1986 to July 1988. It is clear from the record that the
appellant did not serve between the dates specified above,
nor does she meet the remaining eligibility requirements
enumerated above. She served for approximately two years
and one month, or 25 months, and received an honorable
discharge. The Form DD-214 for her second period of service
indicates that the reason for separation was physical
disability with severance pay. The service requirements in
this case are not met in that the appellant first entered
active service prior to June 30, 1985, and did not have
remaining eligibility for benefits under Chapter 34, Title
38, United States Code, that could be converted to meet the
basic eligibility requirements for educational assistance
benefits under Chapter 30, Title 38, United States Code.
Under the circumstances of this case, the Board is without
authority to grant the benefit sought on appeal.
Consequently, as a matter of law, the appellant may not be
awarded educational assistance benefits pursuant to Chapter
30, Title 38, United States Code. In Sabonis v. Brown, 6
Vet.App. 426 (1994), the United States Court of Veterans
Appeals held that in cases such as this in which the law is
dispositive, the claim should be denied because of the
absence of legal merit.
ORDER
The appeal is denied.
EUGENE A. O'NEILL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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